Oppressive FDA Regulations

[ryeguy]

I think that it's a damned clever idea.

Thanks!

You would need enough critical mass to make creating new blends as well as keeping endangered blends profitable, or at least not unprofitable.

Yeah, one big downside is that you couldn't very well sample the blend in a small quantity or make an impulse buy. I'd imagine the minimum share would end up need to be a significant quantity (say, a half-pound). And you'd have to think ahead and buy in to an individual batch before it was started--there wouldn't be a standing inventory that you could purchase out of. But--if legal--this would still allow our popular blends to remain available. And in theory it would allow an avenue for new blends to come to market (though getting someone to purchase in advance a half-pound of a blend he's never tried might be a hard sell). Maybe these economic challenges could be legally overcome through bartering (I can buy into a batch of a new blend knowing that if I don't like it I can trade it out in 2oz bags for stuff I like better).

getting them to put up the money to buy a share of a blender's business might be difficult to achieve

What I am envisioning isn't so much buying part of the blender's business per se, but buying a share in a batch of a particular blend of tobacco. The blender is still independent and running his own business but instead of selling a finished product he sells a service for hire (including the expertise, experience, tools, and physical space necessary to carry out that service) to the people who own the batch of tobacco he is blending.

these Rules apply to finished products only. You can buy all the components you want.

Do you know if it apply to the sale or the production of these finished products? I think that is what the legal (rather than economic) viability fo the arrangement would hing on. If it applies to the sale of finished tobacco products I think this might work; if it applies to the very production or manufacture then it might not.

provide recipes for free and sell ingredients

Yes, that is a possibility. And there is a very limited amount of this already. There are two problems I see with this approach though. First, many blenders are unwilling to give away their recipes (though that might change somewhat if they cannot legally sell the product of those recipes).
Second, lots of smokers aren't set up to produce some blends, let alone produce them with professional levels of consistency and quality. Stoving a flake under intense pressure takes some equipment, some time, and some know-how. I'm not saying I couldn't do it if I had to, but I'd much rather pay a pro who is set up to do it on an industrial scale and knows what he is doing to do it right.

 

[mso489]

Some unpasteurized milk is sold "for pets." Maybe various blends of pipe tobacco could be sold as cat litter or doggy treats. Some cat litter isn't that much less expensive. Dog treats too.

 

[sablebrush52]

Do you know if it apply to the sale or the production of these finished products? I think that is what the legal (rather than economic) viability fo the arrangement would hing on. If it applies to the sale of finished tobacco products I think this might work; if it applies to the very production or manufacture then it might not.

It applies to the sale, which is why a transaction between business shareholders would not be a problem. You're not selling to the public, you're sharing with your shareholders.

Yes, that is a possibility. And there is a very limited amount of this already. There are two problems I see with this approach though. First, many blenders are unwilling to give away their recipes (though that might change somewhat if they cannot legally sell the product of those recipes).
Second, lots of smokers aren't set up to produce some blends, let alone produce them with professional levels of consistency and quality. Stoving a flake under intense pressure takes some equipment, some time, and some know-how. I'm not saying I couldn't do it if I had to, but I'd much rather pay a pro who is set up to do it on an industrial scale and knows what he is doing to do it right.

If you can't sell the finished product, only components, then recipes become the most viable way of selling components to people looking for more of a favorite blend that they can then concoct for their own use. Many blends would be beyond the means of home blenders, but not all. And, if a component is stoved or dark fired "x", then that component could be sold as it's not the finished product. More "easy to make" recipes might also be an outgrowth of this situation. Not all problems can be solved, but many can with some "out of the box" thinking.

 

[ryeguy]

If you can't sell the finished product, only components, then recipes become the most viable way of selling components to people looking for more of a favorite blend that they can then concoct for their own use.

I don't mean to disagree with what you are saying. What you describe may very well be the way the industry ends up going. But whole leaf tobacco is pretty close to a commodity in the strict economic sense (there is little premium for a particular brand of whole leaf--you can substitute one seller's bright virginia for another seller's). Blended tobacco isn't. Blenders differentiate their product in large part through the secrets of their blending--only Dunhill makes 965, just like only CocaCola makes Coke. If blenders give away their recipes they will only make sales by selling either higher quality (NEstle Chocolate chips do command a premium because they--at least it is said--bake differently than other chocolate chips) or cheaper raw components than all their competitors (otherwise anyone can take the best blender's recipe and buy the ingredients to make it from a cheaper competitor).
Again, maybe you are right and purveyors of whole leaf, or even seed tobacco, will give away recipes (just like e.g., Nestle gives away recipes for chocolate chip cookies) to stimulate demand for their product. But for a world-class blender to give away his recipes would be like a world-class chef fundamentally shifting his business model from selling his personal expertise, kitchen, and propriety recipes to selling raw ingredients and giving away the recipes to stimulate demand for the ingredients. It just seems like a hard sell to me.
Maybe if the blenders start selling their casings then the casing would become the branded-product they make money on and the leaf would be the commodity, and then the blenders will have an incentive to give away (the rest of) the recipe to stimulate demand for the proprietary casing.

 

[cosmicfolklore]

No, the same thing that happened to chewing and snuff tobacco will happen to us. They are releasing new blends, especially Camel Snuss, so we will get Winston Nightcap, Camel Virginia Flake, Marlboro Campfire Blend, etc... Didn't Sutliff swap Paul Creasy for a Cigarette exec? So it goes...

 

[jitterbugdude]

Could small blenders offer a service like this after the new regulations go into effect?

Absolutely not. Anyone can buy whole leaf and smoke it for personal consumption but once you strip the main vein and re-sell it you are now a manufacturer and would have to pay the 10's of thousands of dollars it takes for a manufacturing license.

 

[ryeguy]

Anyone can buy whole leaf and smoke it for personal consumption but once you strip the main vein and re-sell it you are now a manufacturer

But what if you aren't reselling it, because you don't own it in the first place?
My tailor doesn't own my cloths and resell them after altering them to fit me. They provide a service to me, and I own the clothes from beginning to end.
If I buy whole leaf and pay someone to strip the main vein for me, from my tobacco, so I can smoke it, is that person now a manufacturer who must pay 10's of thousands of dollars?

 

[cosmicfolklore]

One of the small details that is getting left out of the mix is that which Virginia do you use? The Virginias, for example, the blended Virginia, which goes into the mix to make H&H Anni Cake VaPer, is truely unique. So is the Virginias used in many different Latakia blends, as well as VaPers. I don't think you could just mix some stuff and make Escudo, Nightcap, or Black Malory. If we could, someone would have unlocked the recipe to make Penzance. More actually goes into blending than just mixing some leaf. Besides, most blending kits just have one labelled Turkish or Orientals. Which Turkish, which orientals?
I already mix blends, add some stuff to this one, and tinker with making an aromatic stronger, or making an English lighter. I don't use recipes when cooking, and don't use exact measurements in dabbling in my own mixes. It's not like if you are a gram off in this one or that one, it will taste like crap. Why even use recipes? Just play and make what you want for that moment?
What would be more interesting is to get a McClelland blender called Christmas Cheer, and it could be different each year, because it's just a blender. ::

 

[cosmicfolklore]

If I buy whole leaf and pay someone to strip the main vein for me, from my tobacco, so I can smoke it, is that person now a manufacturer who must pay 10's of thousands of dollars?

If you are talking about using a tobacconist to blend your tobaccos for you, yep. They'd have to pay.

 

[woodsroad]

My interpretation would be that you are hiring the blender as a contract laborer. They do not own the stock, nor are they selling it, so the rules that determine what constitutes manufacturing do not apply. However, we must remember the ATF's rulings on RYO shops that furnished the equipment for customers to roll cigarettes from processed tobacco that they own. It's a similar situation, except that the RYO customers bought the processed tobacco from the same entity that was furnishing the finishing process. But the ATF ruled that even though the customer owned the tobacco, the store was doing manufacturing.
But the only way that I can see this as being economically/logistically viable for the blender is if they also sell you the whole leaf in the first place. Then the ATF/RYO situation is a direct parallel.

 

[ryeguy]

I don't know who's right, but there does appear to be a disagreement in what the new regs say.
Sablebrush says that the regulations only apply to sale of tobacco products. But if there is no sale of tobacco products then the regs don't apply and something like I am suggesting might be legally feasible.
Cosmic and Jitterbuddude seem to be saying that the new regs apply to the production itself. So the very fact that you strip the main vein, even if you don't own the leaf that you are stripping the vein from and consequently don't offer the resulting product for sale, is enough for you to come under the under the new regulations. In that case what I'm describing wouldn't get us anywhere.

 

[ryeguy]

Woodsroad, that is an interesting precedent that I'd known of and forgotten.
Do you remember whether that ever got challenged in court?

 

[woodsroad]

Stripping falls under the jurisdiction of ATF tax law, not the FDA. The FDA does define manufacturing, though and they do have authority to set rules on the entire production process. We will be seeing FDA inspections of manufacturing facilities.
In the end, the FDA rules are written vaguely enough and opaquely enough to allow themselves a great deal of latitude. And remember that challenging any FDA determination is very costly and time-consuming. A low-volume business like blending pipe tobacco simply will not be able to stand up to FDA bullying assault scrutiny.

 

[ryeguy]

In re litigation costs: Yeah, and the cigar industry wouldn't have a dog in that particular fight so the small blenders couldn't count on their financial and legal assistance if it did get litigated.
I don't understand why there isn't a simple political solution to all this. I would expect a Trump administration to be much more sympathetic to small tobacco businesses. I know there are laws that outline how regulations can be made and changed so a new administration can't just sign new regulations into effect, but I would have thought the new administration would have had some ability to do something to stop or maim this train-wreck of misplaced big brother government. (I know the FDA already voluntarily agreed to the extension to the deadline, but I would have hoped for a little more than kicking the can just far enough down the road that the present administration may not have to deal with it.)

 

[cosmicfolklore]

When you start doing what RYO is doing (still doing) you get to play with guys with bent noses and no necks, know whatimean? To use the machines, you gotta pay to be in a club, and the club owns the machines, not the guys who sold you the bag of tobacco. And, if you talk, we'll readjust your ankles for ya.

Redefining this, contracts, trying to find a way to skirt the rules. I mean sure, you wanna start organizin' you go to the guys who know a thing or two. know whatimean?
I am just going by what I have seen at every RYO set-up that I've been to. Guido sells you the bag out front, and you walk around the back to the "club house" to finish on the machines. You can play some video poker, or rent a twelve year old for an hour or so while you wait your turn on the machines.
Sure, buy some whole leaf, download a free recipe, and take it to Guido, he'll know what to do. know whatimean?

 

[ryeguy]

know whatimean

I'm not sure I do. It sounds like you are describing a full on black market.
But I'm looking for a real and legal loophole that would stand up if ever challenged in court.
There are other businesses that operate successfully and legally in just such a narrow legal space.
Aside from the milk co-ops I mentioned earlier, see for example AngelVid (though they are currently in litigation to see whether their loophole is real or not).

 

[cosmicfolklore]

The whole reason we are here, is because the blackmarket IS when you go looking for a legal loophole. If RYO mob goons had of not started the whole storefront/trailer in back cigarette manufacturing "loophole" big cigarette would not have come down on legit pipe tobacco and cigars while trying to SMASH the RYO and VAPE industry that wasn't having to play by the same rules. Skirting rule, loopholes are (sure sure interesting conversation) but let's not forget that we are here, because the mob took RYO nationwide. And, bathtub Vapers markets started crimping into big Cig profits also.

Also, keep in mind that maybe pipes and cigars just got caught up in the friegh, but I am more likely to believe that they have their scummy little hands all ready to grap up the whole shebang. I mean, just look at Chew and snuff.

 

[ryeguy]

the blackmarket IS when you go looking for a legal loophole

By definition the blackmarket operates outside the law (that is, the black market is, by definition, illegal).

What constitutes a "loophole" is often in the eye of the beholder (is the exception in question intended by the law or is it an oversight of a careless legislator or regulator), but the whole idea of a loophole (if it is actually a loophole) is that it makes the activity legal.

If RYO mob goons had not started the whole storefront/trailer in back cigarette manufacturing "loophole" big cigarette would not have come down on legit pipe tobacco and cigars while trying to SMASH the RYO and VAPE industry that wasn't having to play by the same rules.

You may well be right here; finding and exploiting loopholes may motivate the legislator or regulatory agency to tighten the law or regulation in order to close the hole.

 

[woodsroad]

Loopholes and niches don't mean shit if you can't afford to defend your position.
Do you think that the gubbmint will just say " Oh my gosh, you got us there, pal! Well played!"

 

[mawnansmiff]

"just like only CocaCola makes Coke."
I thought Coca-Cola made Coca-Cola and Coke made Coke :nana:
Regards,
Jay.